[2017] KEHC 2128 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 78 OF 2013

HESBON ONDIEK YALA...……………………….....… APPELLANT

VERSUS

DIANA MARY JEREMIAH……………….….………… RESPONDENT

(Being an Appeal from the Judgment and Decree by Hon. Atonga (SRM) in Kisumu CMCC NO.582 OF 2006 delivered on 30th August 2006)

JUDGMENT

1. Hesbon Ondiek Yalasued(hereinafter referred to as appellant) sued Diana Mary Jeremiah(hereinafter referred to as respondent) in the lower court seeking:

a. Unconditional release of M/V KAP 034 X

b. General damages for retinue

c. Costs of the suit

d. Any other relief

2. The defendant/respondent filed a statement of Defence and denied the claim and urged the court to dismiss it with costs.

3. In a judgment delivered on30th August 2006,the learned trial Magistratefound that the subject vehicle was jointly owned by the parties andordered the respondent to refund of Kshs. 166,000/- to the appellant together with costs of the suit.

The Appeal

4. The Appellant being dissatisfied with the lower court’s decision preferred this appeal and filed the Memorandum of Appeal dated 18th November 2015 which set out nine (9) grounds of appeal which I have summarized into 7 grounds to wit:-

1) The Learned Magistrate erred in law and in fact by finding that motor vehicle registration number KAP 034 X was jointly owned by the appellant and the respondent

2) The Learned Magistrate erred in law and in fact by failing to appreciate the appellant pleadings in his judgment but instead dwelt on the defence of the respondent

3) The Learned Magistrate erred in law and in fact by finding that the appellant and the respondent cohabiting and consequently presuming a marital relationship when there was none

4) The Learned Magistrate erred in law and in fact by finding that the respondent contributed to the purchase of motor vehicle registration number KAP 034 X without establishing the extent of her contribution if at all or the source of such contribution

5) The Learned Magistrate erred in law and in fact by failing to establish that the appellant is the purchaser and sole registered owner of motor vehicle registration number KAP 034 X

6) The Learned Magistrate erred in law and in fact by failing to appreciate the appellant’s testimony and documentary evidence in support thereof

7) The Learned Magistrate erred in law and in fact by finding against the appellant to refund the respondent Kshs. 166,000/- which amount was not pleaded in the suit or proved by any documentary evidence or testimony

The evidence

5. Appellant’s claim was struck out on 30. 6.11 and what was for determination before the trial court was the defendant/respondent’s counterclaim for orders for:

a. A declaration that the defendant is entitled to ownership, possession and management of M/V KAP 034 X Nissan passenger van

b. A refund of Kshs. 300,000/- and other expenses incurred by the defendant

c. Costs of the suit and counterclaim

6. In her testimony on 17. 1.13, defendant/respondents said she was married to the plaintiff/respondent for 2 years and that they separated in the year 2006 afterM/VKAP 034 X was bought. She told court that the motor vehicle was bought forKshs. 400,000/- out of which she contributed Kshs. 300,0000/- out of whichKshs. 166,000/- was borrowed from her Sacco. It was her evidence that the appellant only paid Kshs. 100,000/- and later repossessed the vehicle from her and sold it without her consent.

7. Appellant testified that he bought the subject motor vehicle from a car loan ofKshs. 550,000/- given by his employer Kenya Power & Lighting Company as shown by a letter an application letter PEXH. 1 and a letter forwarding cheque for Kshs. 550,000/-PEXH. 3. He stated that he bought the subject motor vehicle for Kshs. 445,000/- as shown by a sale agreement PEXH. 7 and his statement for account no. 029010053624 PEXH. 6c showing issuance of a banker’s cheques for Kshs. 400,000/- to Prisca Kerubo Okongo on 3. 6.06 one of the sellers as confirmed by a letter from Equity Bank marked PEXH. 6c.Appellant further told court that he paid the balance of purchase price of Kshs. 45,000/- from the sum of Kshs. 60,000/- withdrawn from his account on 3. 6.06 as shown by his statement for account PEXH. 6. He denied that the respondent contributed anycash for the purchase of the subject motor vehicle.

SUBMISSIONS BY THE PARTIES

8. When the appeal came up for mention on 18. 7.17, the parties’ advocates agreed to disposedit off by way of written submission which counsels dutifully filed.

Appellants’ submissions

9. It was submitted for the appellant that the respondent’s claim was in the nature of a liquidated claim/ special damages that have to be specifically pleaded and proved. It is the appellant’s contention that the respondent did not prove that she gave himKshs. 166,000/- To this end, appellant cited James Mwangi v Alex Njuguna& 2 others [2011] eKLR where the court of appeal held as follows:

“The law requires that special damages be specifically pleaded and also strictly proved, failing which they are not for granting”.

10. Appellant also submitted that the respondent did not meet the threshold of proof under Section 107 of the Evidence Actand to this end citedKarugi& another v Kabiya& 3 others [1983] eKLRwhere the court held that a plaintiff (and in this case, the defendant) has to prove his case. The appellant additionally submitted that the decision of the trial court was not borne by the evidence and relied on Jameson SiikavAndrewMarangaOngeri [2016] eKLRwhere the court found that the judgment of the trial court could not stand because it violated Order 21 Rules 4 and 5 of the Civil Procedure Rules.

Respondent’s submissions

11. It was submitted for the respondent that the respondent was able to prove that she borrowed Kshs. 166,000/- and that she had given the same to the appellant. It was also submitted that the respondent had proved beneficial ownership of the subject motor vehicle through her cohabitation with the appellant. The respondent cited Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd [2004] eKLRwhere the Court of Appeal said:-

“It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded.

Analysis and Determination

12. This being a first appeal, this court is mandated to evaluate the evidence before the trial court while bearing in mind that it never saw or heard the witnesses and therefore make due allowance for that. The principles governing the consideration and evaluation and findings of an appeal court have well been established particularly in the case of KirugaVsKiruga& Another [1988] KLR page 348 where the Court of Appeal held

“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

13. I have perused the entire record of appeal and considered the submissions by counsels for both parties. In Makube v Nyamuro (1983) KLR 403, the Court of Appeal reiterated that

“a Court on Appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion”.

14. I have perused the entire record of appeal and considered the submissions by counsels for both parties. The burden of proof in civil cases is on a balance of probability. Denning J. in Miller –Vs- Minister of Pensions (1947) discussing that burden of proof had this to say-

“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.

Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

15. Section 107 and 108 of Evidence Act Cap 80 provides for who bears the burden of proof in a case. Those two Sections provide-

“107. (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

16. It is trite law that special damages have to be specifically pleaded and strictly proved. While it is not disputed that respondent proved that she borrowed Kshs. 166,000/- from her Sacco, there was no evidence that she gave the said sum to the appellant for the purchase of the subject motor vehicle. On the contrary, appellant proved that he paid the entire purchase price of Kshs. 445,000/- from proceeds of a car loan he obtained from his employer.The trial magistrate considered extraneous issues which ought not to have been consideredand fell into error when he disregarded the appellant’s exhibits which were produced in court by consent and whose evidence was not controverted.

17. I am in agreement with the holding in James Mwangi v Alex Njuguna& 2 others (Supra)and Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltdand I find that the respondent’s case was not proved since the liquidated sum,though pleaded,was not proved.

17. In the result, the appeal is allowed to the extent that the trial court’s decision awarding the respondent Kshs. 166,000/- is set aside and substituted with an order dismissing the counterclaim with costs to the appellant. The appellant will also have costs of this appeal. It is so ordered.

DATED AND DELIVERED THIS 2ND DAY OF NOVEMBER 2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Mr Ariko holding brief Mr Onsongo

Respondent - Mr Odeny